No Privacy Tort for Australia… Yet

March 21st 2013

Much lauded privacy reform is to become law in Australia in March 2014. The reform introduces a set of 13 harmonized privacy principles, known as Australian Privacy Principles (APPs), enhances the powers of the Australian Privacy Commissioner and changes credit reporting laws.

Yet, despite recommendations from the Australian Law Reform Commission, NSW Law Reform Commission (NSWLRC) and Victorian Law Reform Commission (VLRC) to the contrary, this reform will not be introducing a privacy tort – this question has been referred back to the ALRC. It is a disappointing outcome for a reform that began some seven years ago and it is unlikely that such a tort will emerge through a statutory instrument any time soon.

In 2008, the ALRC already recommended that “federal law should provide for a private cause of action where an individual has suffered a serious invasion of privacy, in circumstances in which the person had a reasonable expectation of privacy.” Remedies in the form of damages, injunctions and apologies were suggested. However, although the issue was raised by the Government in the subsequent discussion paper, it perished without gaining the necessary attention or publicity.

It may be that the privacy tort will develop independently through Courts well before it is enacted. In Maynes v Casey [2011] NSWCA 156, the Court of Appeal of New South Wales held that cases, such as Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 and Giller v Procopets [2008] VSCA 236, laid foundation for development of liability for unjustified intrusion on personal privacy, whether or not involving breach of confidence. However, that particular case, was, on facts, “an inappropriate vehicle to consider any possible developments of the law with respect to intentional invasion of privacy.”

While it may be better to have a common law tort of privacy than not to have one at all, both the ALRC and the VLRC noted it preferable to have a statutory cause of action for breaches of privacy, given that the common law tort would take a long time to be formulated and refined by the Courts. A statutory offence, on the other hand, would be more flexible, not least in terms of remedies and defences.

For any privacy law issues, including compliance, please contact Adam Simpson.